Some Elementary Considerations Concerning the Recent Mumia Abu-Jamal Court Decision re Batson
By Michael Schiffmann
Much has been said in recent days, and rightly so, about how the 3rd Circuit Court of Appeals in its March 27 decision to deny Mumia Abu-Jamal a new trial or at least a hearing on the so-called Batson issue – prosecutorial racism in jury selection – once more created a new “Mumia law” in demanding that the defense objects to such racism already at the time of the trial.
In the following remarks, which I hope to expand into a fuller study in the weeks to come, I want to concentrate on the second part of the court’s ruling on Batson – the one where the court claims to deal with the issue “on the merits,” i.e., not in a formal but in a substantive fashion.
In a nutshell, what the court majority claims in its 77-page part of the whole 118-page decision of the 3rd Circuit is that the defense lacks the data to lay the prima facie case for its claim that prosecutor Joseph McGill used his peremptory challenges in a systematic fashion to strike blacks.
The majority concedes that the defense did supply data on the so-called “strike rate,” which is “computed by comparing the number of peremptory strikes the prosecutor used to remove black potential jurors with the prosecutor’s total number of peremptory strikes exercised.”
There is no question here that the prosecutor’s strike rate – he undisputedly used at least 10 out of the 15 peremptories he used altogether to strike blacks, which yields a strike rate of 66.7 percent – is in stark contradiction to what one would expect from the racial composition of the city at the time, whose population according to the official 1980 census was 37.8 percent black.
But according to the court majority, in order to properly evaluate this strike rate in the Abu-Jamal case, data have to be supplied on another statistical rate, the so-called “exclusion rate,” “which is calculated by comparing the percentage of exercised challenges used against black potential jurors with the percentage of black potential jurors known to be in the venire [jury pool].”
That means that the defense is supposed to supply data on the race of all the jurors that were questioned during the so-called voir dire, i.e., the process of the jury selection, which in the case of Abu-Jamal lasted seven days and according to the Philadelphia Inquirer, June 17, 1982, involved the examination of 157 jurors (in my own files, the transcripts for the next to last day of the jury selection are missing, but that number squares well with the rest of the data that I do have).
In demanding these data, the court majority cites alleged legal precedent which will certainly be ably dealt with by Abu-Jamal’s defense, but which time and space doesn’t allow to go into here. The substantive question, however, is: Why should these data even matter?
The large majority of the jurors in question, 107, were struck, not peremptorily, i.e., without giving a reason, but “for cause,” and therefore their race shouldn’t matter whatsoever: The final arbiter of who gets struck for cause and who is left for the parties to either accept or strike peremptorily is the judge, not the prosecutor, and the whole Batson issue is not about the judge, but the prosecutor, and not about strikes for cause, but about peremptory strikes.
The Two Elephants in the Room
Of course we know that court rules and precedent often defy logic, rationality and mere common sense. But in an utterly astounding move, the March 27 court ruling goes even further and proceeds to distort the record, in ignoring or even expressly claiming the absence of data that the defense did supply both in its October 15, 1999 habeas corpus petition and in filings preceding the May 2007 Abu-Jamal hearing in Philadelphia.
As noted above, 107 of the 157 jurors questioned during the seven-day pre-trial empanelling of Abu-Jamal’s jury were struck for cause, the overwhelming majority for either (1) personal hardship involved in serving two to three weeks on a sequestered jury, (2) doubts whether they could be fair (in my data on six days of jury selection, not one juror said he had a fixed opinion that Abu-Jamal was innocent, but many had already concluded he was guilty), or (3) opposition against the death penalty, which was by no means only constrained to blacks.
5 persons were either seated as one of the 4 alternate jurors or – in the case of 1 person – peremptorily struck as alternate juror, a matter which I will come back to in a moment.
This leaves us with 45 persons who were either accepted into the jury or struck peremptorily by either the defense or the prosecution. 12 of these were seated as jurors, 19 were peremptorily struck by the defense, and 15 were peremptorily struck by the prosecution. As the defense states in a July 19, 2006 filing, 6 of these “were struck by the defense before the prosecutor had an opportunity to either strike or accept them.”